Police Powers for Designated Staff (Complaints and Misconduct) Regulations (Northern Ireland) 2008

Regulation 26

SCHEDULE 1 COMPLAINTS WHICH ARE ANONYMOUS, REPETITIOUS OR INCAPABLE OF INVESTIGATION

1.—(1) In this Schedule any reference to an injured person other than the complainant shall have effect only in the case of a complaint against a designated person in respect of his conduct towards a person other than the complainant; and, in such a case, any such reference is a reference to that other person.

(2) In this Schedule any reference to action not being reasonably practicable shall include a reference to action which it does not appear reasonably practicable to take within a period which is reasonable in all the circumstances of the case.

2.  For the purposes of regulation 26 a complaint is an anonymous one if, and only if, it discloses (or purports to disclose) neither the name and address of the complainant nor that of any other injured person and it is not reasonably practicable to ascertain such a name and address.

3.—(1) For the purposes of regulation 26 a complaint is a repetitious one if, and only if—

(a) it is substantially the same as a previous complaint (whether made by or on behalf of the same or a different complainant);

(b) it contains no fresh allegations which significantly affect the account of the conduct complained of;

(c) no fresh evidence, being evidence which was not reasonably available at the time the previous complaint was made, is tendered in support of it; and

(d) such action as is referred to in sub-paragraph (2) has been taken, as respects the previous complaint.

(2) The condition in sub-paragraph (1)(d) shall be satisfied if, as respects the previous complaint—

(a) the requirements of—

(i) section 58 of the 1998 Act, and

(ii) section 59 of that Act or (as the case may be) regulation 27,

were complied with; or

(b) the complainant gave such a notification as is mentioned in regulation 24(1); or

(c) the Ombudsman, under regulation 26, dispensed with the requirements mentioned in paragraph (1) of that regulation.

4.—(1) For the purposes of regulation 26 it shall not be reasonably practicable to complete the investigation of a complaint if, and only if, in the opinion of the Ombudsman—

(a) it is not reasonably practicable to communicate with the complainant or, as the case may be, the person who submitted the complaint, or any other injured person, notwithstanding that the complaint is not an anonymous one within the meaning of paragraph 2, or

(b) it is not reasonably practicable to complete a satisfactory investigation in consequence of—

(i) a refusal or failure, on the part of the complainant, to make a statement or afford other reasonable assistance for the purposes of the investigation, or

(ii) a refusal or failure, on the part of an injured person other than the complainant, to support the complaint, evidenced either by a statement in writing (signed by him or by his solicitor or other authorised agent on his behalf) to the effect that he does not support it or by a refusal or failure, on his part, such as is mentioned in sub-paragraph (i) above, or

(c) the lapse of time since the event or events forming the subject matter of the complaint.

Regulation 37

SCHEDULE 2 CAUTIONS

1.  You do not have to say anything, but I must caution you that if you do not mention when questioned something which you later rely on in any subsequent misconduct proceedings, it may harm your defence. You may, if you so desire, make a written or oral statement to the officer appointed to investigate your case or to the Chief Constable. Anything you mention when questioned or any written or oral statement you make may be given in evidence at such misconduct proceedings.

2.  On [date] at [time] at [place] there was—

(a) on your person,

(b) in or on your clothing/footwear,

(c) in your possession, or

(d) in the place where you were at that time,

a [state the object/substance/mark].

I believe the presence of this [state the object/substance/mark] may be due to your having breached the code of ethics applying to persons designated under section 30, 30A or 31 of the Police (Northern Ireland) Act 2003.

You do not have to say anything about [state the object/substance/mark], but I must caution you that if you fail or refuse to account for [state the object/substance/mark] then your failure or refusal may be treated in any subsequent misconduct proceedings as supporting any relevant evidence against you. If you do say anything it may be given in evidence at such misconduct proceedings.

I now ask you to account for [state the object/substance/mark]. Have you anything you wish to say?

3.  You were found on [day and date] at [place] at [time] which is at or about the time the code of ethics applying to persons designated under section 30, 30A or 31 of the Police (Northern Ireland) Act 2003 is alleged to have been breached.

I believe your presence at [place] at that time may be due to your involvement in this breach of the code of ethics.

You do not have to say anything about your presence at [place] on [day and date] at [time] but I must caution you that if you fail or refuse to account for your presence at [place] then your failure or refusal may be treated in any subsequent misconduct proceedings as supporting any relevant evidence against you. If you do say anything it may be given in evidence at such misconduct proceedings.

I now ask you to account for your presence on [day and date] at [place] at or about [time]. Have you anything you wish to say?

Regulations 39 and 40

SCHEDULE 3 SPECIAL CASES

PART 1 Conditions

1.—(1) The conditions referred to in regulations 39 and 40 are—

(a) the report, complaint or allegation indicates that the conduct of the designated person concerned is of a serious nature and that an imprisonable offence may have been committed by the designated person concerned; and

(b) the conduct is such that, were the case to be referred to a hearing under regulation 38 and the members of the panel conducting that hearing were to find that the conduct failed to meet the appropriate standard, they would in the opinion of the appropriate officer be likely to recommend the dismissal of the designated person concerned from his post in the police support staff; and

(c) the report, complaint or allegation is supported by written statements, documents or other material which is, in the opinion of the appropriate officer, sufficient without further evidence to establish on the balance of probabilities that the conduct of the designated person concerned did not meet the appropriate standard; and

(d) the appropriate officer is of the opinion that it is in the public interest for the designated person concerned to cease to be a member of the police support staff without delay.

(2) In this paragraph an “imprisonable offence” means an offence which is punishable with imprisonment in the case of a person aged 21 or over.

PART 2 Modifications

The following modifications apply in cases referred to a hearing under regulation 40.

2.  For regulations 43 (withdrawal of case) and 44 (notice of decision to refer case to hearing) substitute the following regulations—

“43.   At any time before the beginning of the hearing of a case the appropriate officer may direct that the case be returned to the supervising member or, in the case of an investigation under section 56 or 57 of the 1998 Act, the Ombudsman.

44.— (1) The appropriate officer shall ensure that, as soon as practicable, the designated person concerned is invited to an interview with the appropriate officer at which he shall be given written notice of the decision to refer the case to a hearing and supplied with copies of—

(a) the certificate issued under regulation 40;

(b) any statement he may have made to the appointed officer; and

(c) any relevant statement, document or other material obtained during the course of the investigation.

(2) The notice given under paragraph (1) shall specify the conduct of the designated person concerned which it is alleged failed to meet the appropriate standard and the paragraph of the code of ethics in respect of which the appropriate standard is alleged not to have been met.

(3) In this regulation any reference to a copy of a statement shall, where it was not made in writing, be construed as a reference to a copy of an account thereof.

(4) Where the designated person concerned fails or is unable to attend the interview referred to in paragraph (1), the notice and copy documents referred to in that paragraph shall be—

(a) delivered to the designated person concerned personally, or

(b) left with some person at, or sent by recorded delivery to, the address at which he is residing.”

3.  For regulation 45 (notification of hearing) substitute the following regulation—

“45.   The appropriate officer shall fix a date for the hearing which shall be not less than 21 and not more than 28 days from the date on which notice is given under regulation 44 and shall ensure that the designated person concerned is forthwith notified of the time, date and place of the hearing.”

4.  In regulation 46 (procedure on receipt of notice)—

(a) in paragraph (1), for the words from “on which he is notified” to the end substitute the words “on which he receives the documents referred to in regulation 44, whether or not he accepts that his conduct did not meet the appropriate standard.”; and

(b) omit paragraphs (2) and (3).

5.  For regulation 47 (panel conducting the hearing) substitute the following regulation—

“47.— (1) Subject to paragraph (2), a case which is referred to a hearing under regulation 40 shall be heard by the Chief Constable.

(2) Where the Chief Constable is an interested party, the case shall be heard by the chief officer of a police force in Great Britain who has agreed to act in that capacity.”

6.  Omit regulation 48 (documents to be supplied to the designated person concerned).

7.  In regulation 49 (documents to be supplied to the panel conducting the hearing)—

(a) for “panel” substitute “officer”, and

(b) for paragraphs (a) and (b) substitute the words “a copy of the notice given, and of any documents provided to the designated person concerned, under regulation 44”.

8.  In regulation 50 (representation), in paragraph (1) for “supervising member” substitute “appropriate officer”.

9.  For regulation 51 (conduct of hearing) substitute the following regulation—

“51.   The officer conducting the hearing may adjourn if it appears to him to be necessary or expedient to do so; but he—

(a) shall not exercise the power to adjourn more than once; and

(b) shall not adjourn for longer than a period of one week or, on application by the designated person concerned, 4 weeks.”

10.  In regulation 52 (procedures at hearing)—

(a) for “panel” (wherever occurring) substitute “officer”; and

(b) in paragraph (1) for “their own procedures” substitute “his own procedures”.

11.  In regulation 53 (non-attendance) in paragraph (3) for “presiding officer” substitute “officer conducting the hearing”.

12.  In regulation 54 (attendance of complainant at hearing)—

(a) in paragraph (2)—

(i) for the words “paragraphs (3) and (4)” substitute “paragraph (4)”, and

(ii) omit the words “while witnesses are being examined, or cross-examined,”;

(b) omit paragraphs (3) and (6),

(c) in paragraph (5), omit the words “Except where giving evidence as a witness, or putting questions under paragraph (6),”; and

(d) for “presiding officer” (wherever occurring) substitute “officer conducting the hearing”.

13.  In regulation 55 (attendance of others at hearing)—

(a) in paragraph (2) for “presiding officer” substitute “officer conducting the hearing”; and

(b) omit paragraph (5).

14.  Omit regulation 56 (exclusion of public from hearing).

15.  In regulation 57 (evidence at hearing)—

(a) in paragraph (1), omit the words, “or whether any question should or should not be put to a witness”;

(b) in paragraph (2), for “44(1)(b)” substitute “44(1)(b) or (4)”;

(c) for “presiding officer” (wherever occurring) substitute “officer conducting the hearing”; and

(d) at the end add the following paragraph—

“(3) No witnesses shall be called by either party to the case.”.

16.  In regulation 58 (remission of cases)—

(a) for “presiding officer” (wherever occurring) substitute “officer conducting the hearing”; and

(b) at the end add the following paragraph—

“(3) The officer conducting the hearing may return the case to the supervising member or appropriate officer if either before or during the hearing, the officer conducting the hearing considers it appropriate to do so.”.

17.  In regulation 59 (record of hearing) for “presiding officer” substitute “officer conducting the hearing”.

18.  In regulation 60 (finding, recommendation and sanction)—

(a) in paragraph (1)(b) (written notification of finding) for “three working days” substitute “24 hours”;

(b) in paragraph (2) (report of finding)—

(i) for “the presiding officer” substitute “officer conducting the hearing”, and

(ii) for “the panel's” substitute “his”; and

(c) in paragraph (3) (recommendation)—

(i) for “panel conducting the hearing decide” substitute “officer conducting the hearing decides”, and

(ii) for “after consultation with the other members of the panel, the presiding officer” substitute “he”.

19.  In regulation 61 (personal record to be considered before recommendation made)—

(a) in paragraph (a) for “members of the panel” substitute “officer”;

(b) for paragraph (b) substitute—

“(b) the officer conducting the hearing may admit such documentary evidence as would in his opinion or in the opinion of the designated person concerned, assist in determining the question, and”; and

(c) in paragraph (c) after the word “adduce” insert “documentary”.

20.  In regulation 62 (request for a review)—

(a) for paragraph (1) substitute—

“(1) Where the officer conducting the hearing decides that the conduct of the designated person concerned did not meet the appropriate standard, the designated person concerned shall be entitled to ask the Chief Constable to refer the case to the chief officer of a police force in Great Britain who has agreed to act in that capacity (“the reviewing officer”) to review the finding.”; and

(b) in paragraph (2), omit the words “or within such longer period as the Chief Constable may, in his discretion, allow, having regard to the circumstances of the case”.

21.  In regulation 63 (conduct of the review), in paragraph (1) for “Chief Constable” substitute “reviewing officer”.

22.  In regulation 64 (finding of the review)—

(a) in paragraph (1), for “three days” substitute “24 hours”;

(b) for “Chief Constable” (wherever occurring) substitute “reviewing officer”;

(c) at the end add the following paragraph—

“(4) Where the reviewing officer considers that the officer conducting the hearing should have returned the case to the supervising member or appropriate officer under regulation 58, he shall so return the case and the case shall thereafter be deemed to have been returned under that regulation.”

23.  Omit regulation 65 (hearing of review in absence of the Chief Constable).

Regulation 41

SCHEDULE 4 SPECIAL PROCEDURES FOR HEARING DIRECTED BY OMBUDSMAN OR AFFECTED BY EXCEPTIONAL CIRCUMSTANCES

These modifications have effect for the purposes of misconduct proceedings in any case such as is mentioned in regulation 41(1) or (2).

1.  For regulation 47 (panel conducting the hearing) substitute—

“Panel conducting the hearing

47.— (1) Where a case is referred to a hearing it shall be heard by a panel appointed by the Chief Constable.

(2) A panel appointed under paragraph (1) shall consist of—

(a) a barrister or solicitor, who shall be chairman,

(b) a police officer or member of a police force in Great Britain of the rank of superintendent or chief superintendent, or an employee holding an appropriate position in the police support staff, and

(c) another panel member who—

(i) is neither a serving officer in the police or in a police force in Great Britain nor a member of the police support staff, and

(ii) is eligible to sit on an employment tribunal or is a legal practitioner,

being persons who are selected from lists of eligible persons maintained by the Chief Constable and who are not interested parties.”

2.  In regulation 50 (representation) for paragraph (1) (appointment of presenting officer) substitute—

“(1) The Ombudsman shall present the case.”

3.  In regulation 51 (conduct of hearing) for paragraph (2) substitute—

“(2) The decision as to whether there was a breach of conduct by the designated person concerned may be made by majority decision.”

4.  For any reference in regulation 53, 54, 55, 56, 57, 59 or 60 to the presiding officer substitute a reference to the chairman.

5.  Omit regulation 58 (remission of cases).